28 February 2012

January 18, 2012 may well go down as a pivotal date in the
history of the Internet – and of copyright. For on that day, the
English-language Wikipedia and thousands of other websites were blacked
out or modified to protest against two bills passing through the US
legislative system that were designed to fight copyright infringement.
To understand why that unprecedented action took place, and what it
means for the future of the Net, it’s necessary to review the history of
copyright briefly.

Somewhat belatedly (apologies), here is the second part of my
analysis of the UK government's Open Standards consultation. As well as
a quick look at the remaining two chapters, I include my responses to
individual questions at the end.

A few months ago, I wrote
about the library management program Koha, and how the irruption of
money into the previously tranquil world of open source led to some
painful arguments. Sadly, that's not a unique example, as the recent
case of WURFL demonstrates.

25 February 2012

As Techdirt reported
at the time, the UK's Digital Economy Bill was rammed through
Parliament, without proper scrutiny or even much democratic process, in
the dying hours of the previous government. Since then, the
implementation of the Digital Economy Act has moved forward relatively
slowly. That's partly because there have been a series of legal challenges
from ISPs concerned about its legality (and likely cost for them). In
addition, it made sense for the current UK government to wait for the
completion of the Hargreaves report on copyright in the digital age
before proceeding.

The governmental body that oversees France's "three-strikes" law, HADOPI, has already been caught once infringing
on the copyright of others -- by using a logo designed with unlicensed
fonts. Now it's been spotted using photographs without respecting the
so-called "moral rights" of the photographer, which include the right to attribution (French original),
absent on HADOPI's site. Such moral rights are taken very seriously in
France, where they are automatic, perpetual and cannot be waived
(unlike in some other jurisdictions, such as the United Kingdom.)

It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement
that the European Commission would be referring ACTA to the European
Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any
way -- with the EU's fundamental rights and freedoms." Just a few
hours after that, there are already signs of panic among ACTA's
supporters that the treaty may indeed be incompatible -- and thus dead
in the water as far as the European Union is concerned.

The British Journal of Photography (BJP) brings us yet another story of aggressive assertion of copyright wreaking harm on artists
-- the very people it allegedly empowers. It concerns some photos in
Getty Images' stock library that have chairs in them. Because a few of
those chairs are "famous" in the sense that they were produced by a
couple of designers that worked with the architect Le Corbusier, the
heirs of those designers, together with the Le Corbusier Foundation,
have sued Getty Images in France for copyright infringement -- and won:

22 February 2012

Last week, we had a story
about the IFPI (the international equivalent of the RIAA) saying that
the ACTA protests were trying to "silence the democratic process". You
might have thought that was bad enough, but here's worse.

One of the widely-recognised problems with ACTA is the lack of transparency surrounding its negotiation. Since I have addressed this issue at length elsewhere,
I won't repeat myself here. But it occurred to me that there is
another way of looking at transparency, and that is in terms of
consultation. In a sense, it's the flip side of transparency.

Nicolas Sarkozy, who hopes to be re-elected as French President this
year, seems to have little love for the Internet. At best, he regards
it as a "Wild West" that needs taming. Despite that, Sarkozy joined Twitter last week -- you can follow him @NicolasSarkozy.
Posts are mainly written by his re-election team, although there seem
to be a handful of personal tweets (marked "NS"). But at least he's
finally engaging with the new medium on its own terms.

The increasingly heated debates about the traditionally dull area of
computer standards is testimony to the rise of open source. For the
latter absolutely requires standards to be truly open - that is, freely
implementable, without any restrictions - whereas in the past standards
were pretty much anything that enough powerful companies agreed upon,
regardless of how restrictive they were.

One of the key problems with ACTA is the lack of transparency during
its negotiation. That this is becoming a big issue in Europe is shown by
the fact that the European Commission has tried to dispose of the
question twice -- first in its "10 myths about ACTA", which I discussed recently on Techdirt, and now with a page entitled "Transparency of ACTA negotiations":

As Techdirt noted
recently, policy-making behind closed doors is no longer acceptable.
Until the end of the 20th century, it was hard for the general public to
make their views heard, and so governments didn't really bother asking
them. But that's no longer the case: the Internet has blown government
wide open, and there is now no excuse for not consulting as widely as
possible -- including the public -- before passing legislation or
signing treaties.

Although DMCA takedown notices figure quite frequently here on
Techdirt -- especially abusive ones that use the system to remove
material covered by fair use or even in the public domain
-- the industry that has grown up around them remains somewhat in the
shadows. That's what makes the site with the self-explanatory name "Takedown Piracy", found via the 1709 Blog, so fascinating: it offers a glimpse of the world of DMCA takedowns as seen from the other side.

17 February 2012

Yesterday I wrote
about the unusual aspects of the Serious Organised Crime Agency's
take-down of the music site RnBXclusive. As I noted then, there are
still lots of questions to be answered here, but another piece of the
puzzle has been given to us in the form of the following statement on SOCA's Web site:

Few ideas display a sense of entitlement better than that of private
copying levies. For they assume, by definition, that artists'
representatives have a right to money from the public simply because
there is some kind of storage that could be used to hold digital
copies of copyright files, and that every time such a file is copied,
money must be paid (never mind if you are just making backups or
transferring your holdings to bigger storage sizes.)

One of the positive outcomes of the debate that has raged around
SOPA/PIPA is that more people have looked at the facts, rather than
listened to the rhetoric, surrounding piracy. In particular, the
copyright industries' hitherto unchallenged claim that piracy is
destroying their business is finally being challenged – not least by
reports like "The Sky is Rising" that consolidate industry figures to show that things are really looking pretty good across the board.

One of the positive outcomes of the debate that has raged around
SOPA/PIPA is that more people have looked at the facts, rather than
listened to the rhetoric, surrounding piracy. In particular, the
copyright industries' hitherto unchallenged claim that piracy is
destroying their business is finally being challenged – not least by
reports like "The Sky is Rising" that consolidate industry figures to show that things are really looking pretty good across the board.

One telling sign of the widespread concern about SOPA/PIPA was that the
non-profit Mozilla Foundation, which oversees the open source Firefox
and Thunderbird projects, abandoned its non-interventionist policy, and
came out strongly against the bills. It first signed a joint letter sent to the key sponsors of both bills, and then modified its home page, pointing to further information about SOPA. That, in its turn, linked to a post entitled "PIPA/SOPA and Why You Should Care," written by Mitchell Baker, the Chair of the Mozilla Foundation.

Well, here's a turn-up for the books. At a time when the European
Commission is insisting that the copyright ratchet should be tightened
up a few notches by bringing in ACTA, with its perilously vague terms
that potentially criminalize even low-level acts of online sharing,
here's the Dutch government planning to go in the opposite direction:

It's a sign of the European Commission's increasing desperation over
ACTA that it has been forced to send out a document entitled "10 Myths
About ACTA" [pdf]
that purports to debunk misinformation that is being put around.
Unsurprisingly, the EC's document is itself full of misinformation.
Here are just a few of the more outrageous examples.

13 February 2012

The European Commission's defence of ACTA has
essentially two prongs. The first is that "ACTA changes nothing for
Europeans"; I discussed why that was simply not true in my previous two
updates. The other is: "we need ACTA to
protect our economies from counterfeiting." Leaving aside the sleight
of hand that blurs the distinction between physical counterfeits and
digital copies - something I've noted before - I want to show why this
claim too is false.

In the last few days, we've seen an extraordinary wave of announcements
by governments in Europe, particularly its eastern part, that they
would not be ratifying ACTA immediately. That sequence of events,
culminating in today's news that Germany, too, would be holding off, has suddenly made lots of people sit up and take notice.

But even against that tumultuous background, few of us would have
expected that two of the most serious business publications in Europe,
The Economist and Financial Times, would both go much further than
simply noting the problems the treaty now faces, and declare that ACTA
is pretty much dead.

09 February 2012

This is a continuation of my previous post examining the European
Commission's attempt to dispel what it calls ten "myths" about ACTA [.pdf].
I'm commenting only on the most egregious attempts by the Commission
to talk away the issues - it would be too tedious to go through every
point in detail.

08 February 2012

Publishers find themselves confronted by a difficult dilemma at the
moment. On the one hand, they might want e-books to succeed, because
digital devices represent a huge new market to which they can sell their
back catalogs. On the other, they might want them to fail, because
e-books will cannibalize sales of traditional books, and it's not yet
clear how low the price of e-books will have to go in order to avoid the
kind of piracy problems the recording industry exacerbated through
persistent overcharging.

It's a sign of the European Commission's increasing desperation over ACTA that it has been forced to send out a document entitled "10 Myths About ACTA" [.pdf] that purports to debunk misinformation that is being put around. Unsurprisingly, the EC's
document is itself full of misinformation; over the next few days I'll
be going through some of its most egregious attempts to obfuscate and
generally explain away the deep problems of ACTA.

With all the heat
that publishers are starting to feel from the academic community, you
might have thought that they'd avoid upsetting anyone else. But it
seems that some publishers have decided to go after lawyers who make
patent applications that include copies of academic articles as prior
art. As the PatentlyO blog explains:

Nicolas Sarkozy, the President of France, has the sad distinction of
being in the vanguard when it comes to really bad ideas concerning the
Internet. On his initiative, France became the testing-ground for the
three-strikes approach of throwing people off the Internet upon multiple
accusations of copyright infringement, without the need for proof or a
court order, known there as HADOPI. He also helped put into circulation a view that is much in vogue at the moment:

04 February 2012

With the immediate threat from SOPA/PIPA on hold, people have started
to turn their attention to the long-running saga of ACTA. While it was
being negotiated behind closed doors, few people knew about it, and
protests against it were muted. Now that it has finally emerged into
the open and begins its last dash towards the finishing line of
ratification, the pace of anti-ACTA activism is beginning to pick up
quickly. That's especially true in Europe, where everything hinges on
the result of the European Parliament's vote on the treaty later this
year. If it rejects it, ACTA is dead.

A key element of the political rhetoric around SOPA/PIPA was the idea that it was about jobs,
and that jobs are so critical in the current economic climate that
safeguarding them overrides any other concern the Net world might have
about the means being proposed to do that. But then the key question
becomes: who are really more important in terms of those jobs - the
copyright industries, or companies exploiting the potential of the
Internet that would be harmed if the Net were hobbled by new
legislation?

Last Year Techdirt wrote
about the case of the huge collection of historic jazz recordings that
had been acquired by the US National Jazz Museum. The central problem is
that even if the recordings can be digitized before they deteriorate,
very few people will hear them because of their complicated copyright
status.

02 February 2012

Numerous Wikileaks cables have highlighted the pressure that the US has
brought to bear on several foreign governments behind closed doors in an
attempt to get the latter to pass maximalist copyright laws. But it's
worth noting that plenty of arm twisting takes place openly. Here, for
example, is a letter (pdf) from the American Chamber of Commerce in Estonia addressed to the Minister of Justice, and the Minister of Economic Affairs and Communications of that country:

Anyone who follows me on Twitter or identi.ca, or on Google+
will have noticed something of a crescendo of posts about the
Anti-Counterfeiting Trade Agreement (ACTA) recently. There are two
reasons for this.

The annual Digital Music Report (pdf)
of the International Federation for the Phonographic Industry (IFPI) is
a curiously conflicted production. On the one hand, it must celebrate
"a healthy 8 per cent increase in our digital revenues in 2011 -- the
first time the annual growth rate has risen since records began in 2004
"; on the other, it must continue to push the party line about how the
industry is being destroyed by piracy.

Twitter has taken quite a lot of heat
for putting in place the capability to block tweets on a geographical
basis. This begins to look a little unfair in light of the fact that
Google quietly adopted a similar policy before Twitter. That's shown by
the answer to a question on Google's Blogger site about blogs being redirected to country-specific URLs, which at the time of writing was last updated on 9 January 2012. Here's what it says:

It's now widely recognized that the extreme demands of SOPA/PIPA
catalyzed a new activism within the Net world, epitomized by the
blackout effected by sites like Wikipedia on January 18. But as
Techdirt has reported, SOPA and PIPA are not the only attacks by the
copyright industries on the digital commons: another is the Research Works Act (RWA), which attempts to remove the public's right to read the articles written by tax-funded researchers in open access journals form.

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.